All in all, this is a slow time for law news. However, this lengthy piece in the Boston Globe today, with the headline "Will an obscure law bring down the global economy?" caught my eye. Some quotes:
What is this dangerous act? The commotion concerns a hitherto obscure provision in the law that created our federal court system, the Judiciary Act of 1789. It reads: ''The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'' In other words, foreigners can sue in US courts for violations of international law. It is a potentially powerful weapon. And now, more than two centuries after its adoption, the Supreme Court has finally agreed to rule on its use.Linda Greenhouse of the NY Times had a column on the challenges to this law on December 1. Here is some of what she wrote:
For two centuries, the Alien Tort Statute received little attention, and much about its origins — and even its name — is obscure. It is sometimes called the Alien Tort Act or the Alien Tort Claim Act. A 1980 decision by the federal appeals court in New York allowed a Paraguayan family to sue a Paraguayan police official in Federal District Court in Brooklyn for a kidnapping and murder that occurred in Paraguay and gave the old law a new visibility. It was not until the mid-1990's that the law was used to sue corporations.An interesting perspective on the use of the Alien Tort Act is found in this well-worth-reading report, titled "A New Moral Compass for the Boardroom," that appears in the current issue of Corporate Board Member Magazine. The premise pf the report:The administration's basic argument is that the law provides jurisdiction in a general sense but conveys no specific rights that can be enforced by a private lawsuit. The lawsuits on behalf of those being detained by the United States at Guantánamo Bay, Cuba, included allegations under the Alien Tort Statute, but that question is not before the Supreme Court in the detainees' appeals that the justices accepted three weeks ago.
Directors are broadening the horizon of their responsibilities at a growing number of successful companies. But sorting out exactly what to do is not easy. Balancing obligations to workers and shareholders, deciding whether or not to operate in countries that tolerate child labor, assessing a fair share of environmental-cleanup costs—questions like these can tax and divide even the best-motivated businesspeople. Directors’ thoughts on such topics, as expressed to Corporate Board Member—plus the thinking of academics, ethicists, and governance activists—point the way toward a new moral compass for corporations.About halfway through the review is this paragraph (emphasis added):Directors are being bumped and prodded from three directions—external pressures, personal values, and changing definitions of corporate success—to increase their focus on social responsibility. “There is a hugely heightened public scrutiny,” notes Steven Shapiro, executive vice president and corporate secretary of First Midwest Bancorp in Itasca, Illinois. “That ratchets up the bar, because now, besides asking themselves all the usual questions, directors are asking themselves, ‘Do we want this on the front page of the New York Times or the Wall Street Journal?’”
Myanmar has some of the worst labor conditions on the planet and the lowest wages, about 4 cents a day. Building that 39 miles—at an estimated cost of $1.2 billion—has generated all kinds of horror stories: of men beaten into working on the project, of women raped by its military guards, of families forcibly relocated to make way for it. EarthRights International, a Washington, D.C.-based group run by Katie Redford, wants to hold Unocal, a 28% investor in the pipeline, accountable for the atrocities directly connected to it. Redford, 35, is working on behalf of a dozen Burmese villagers who are using a 1789 law called the Alien Tort Claims Act—which some people say was originally intended to fight piracy—to sue Unocal in the United States. The law says that foreign citizens can claim violations of international law in U.S. courts. Other plaintiffs are employing it to sue ChevronTexaco for alleged abuses in Nigeria, DynCorp for alleged misdeeds in Ecuador, and Occidental Petroleum for alleged illegalities in Colombia. Unocal maintains that the Yadana project “has brought significant benefits in health care, education, and economic opportunity” to the area. The company says that it “and the other project investors do not defend the actions and policies of the government of Myanmar,” but that it “believes that engagement is by far the more effective way to strengthen economies and promote more open societies.”Finally, Charles Lane of the Washington Post also wrote here about this law on December 1. Some quotes:
Though rarely invoked throughout most of U.S. history, the law has been interpreted by several federal appeals courts since 1980 to open the federal courts to suits for monetary damages based on alleged violations worldwide of internationally recognized human rights norms.Among the defendants who have been sued are Radovan Karadzic, the Bosnian Serb leader allegedly responsible for mass killings of Muslim civilians, and Unocal, the petroleum multinational, which is fighting a lawsuit over its alleged collaboration with the use of forced labor by Burma's government on a natural gas pipeline.
That interpretation of the Alien Tort Act is vigorously defended by human rights and environmental activists, who see it as a powerful tool for reining in the unlawful conduct of individuals, companies or government officials that might otherwise escape justice. * * *
The cases are Sosa v. Alvarez-Machain, No. 03-339, and U.S. v. Alvarez-Machain, No. 03-485, consolidated. Oral argument is to take place in the spring, and a decision is expected by July.